Judge Theodor Meron confirms that legality of settlements and recognition of Palestinian state are completely separate issues

Former Australian Foreign Minister, Bob Carr, has on several occasions (see example here) cited the well-known opinion of Theodor Meron to Israel’s Prime Minister Levi Eshkol in September 1967, when Mr Meron (now Judge Meron) was Legal Adviser to the Israeli Ministry of Foreign Affairs, in which he concluded that “civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention”.

Whilst Mr Carr has not purported directly to cite Theodor Meron’s opinion about the settlements in support of his advocacy of immediate Australian recognition of a Palestinian State, Mr Carr has juxtaposed the question of recognition with the legal status of the settlements. (A recent example was at a talk he gave to a NSW ALP federal electorate council meeting in Sydney on 27 June 2017, which was widely reported in the media).

In much of the public discussion in Australia the two issues have been conflated, and advocates of recognition of a Palestinian state have done nothing to acknowledge that the legal and policy considerations that are relevant to the two issues are different. In fact they have falsely and misleadingly suggested the opposite.

In the interests of accuracy, the ECAJ wrote to Judge Meron and asked him to clarify his views.

Judge Meron has now confirmed by letter that his opinion related to the legality of the settlements only, and that he was not taking, and has never taken, a position on whether any Palestinian entity currently satisfies the legal criteria for statehood and recognition.

According to Judge Meron, the two issues are “wholly distinct”, and there are “no consequences which necessarily follow” from his opinion concerning the legality of settlements “for the separate legal question of contemporary recognition of states”.

With his Honour’s permission we now publish his complete letter.

Although other eminent international lawyers such as the late Julius Stone, Judge Stephen Shwebel and Eugene Rostow, among others, have published contrary opinions to those of Judge Meron concerning the legality of Israel’s civilian settlements in the West Bank, we know of no international lawyer of similar standing who disagrees with Judge Meron’s statement that the settlements issue and the recognition issue are wholly distinct from one another.

As to the latter issue, given what has thus far been an irreconcilable philosophical and political division between the Palestinian Authority and Hamas (whose armed wing has been listed as a terrorist organisation by the Australian Government since 2003), each of which controls different parts of the territory claimed by the Palestinians, there is currently no Palestinian organisation which is capable of asserting its authority and maintaining order throughout that territory. This means that the Palestinians at present do not meet at least one of the essential requirements for a State according to international law (and common sense) namely, a government.

Guy Goodwin-Gill, a barrister and a professor of public international law at Oxford University, represented the Palestinians before the International Court of Justice in the 2004 “Wall” case. He has expressed the following opinion, as apposite now as when it was first published in 2011:

“Until such a time as a final settlement is agreed, the putative State of Palestine will have no territory over which it exercises effective sovereignty, its borders will be indeterminate or disputed, its population, actual and potential, undetermined and many of them continuing to live under occupation or in States of refuge. While it may be an observer State in the United Nations, it will fall short of meeting the internationally agreed criteria of statehood, with serious implications for Palestinians at large, particularly as concerns the popular representation of those not currently present in the Occupied Palestinian Territory.” (Emphasis added)

We note the striking contrast between the legalistic approach purportedly adopted by Mr Carr on the question of Israeli settlements, and his cavalier disregard for well-established legal principles concerning the creation of states and their recognition. The international rule of law has meaning only if it is supported as a general principle, not selectively.